Binghamton Phil 345 Midterm

Scalia Originalism/Textualism

Interpreting as text would have been understood by original audience at the time of its publication

The difference between officials' and subjects' relationship to law

(i) private citizens must generally obey the primary rules of obligation, i.e. those rules of behaviur are valid according to the system's ultimate criteria of validity must be generally obeyed and (ii) public officials must accept the secondary rules of recognition, change, and adjudication as standards of official conduct. If both of these essentials are not satisfied, then primary rules may only be adequate to establish a pre-legal form of government.

Three types of objections to Austin's theory of law: content, range of application, and mode of origin

1. Content of laws: power-conferring rules Law gives people the power to make contracts, wills, and by-laws, something that is not covered by Austin's theory as not all laws are based upon obedience in the face of threats or duty-imposing. 2. Scope of range of application Self-binding laws - laws are not orders given to others but rather imposed on everyone equally. This therefore places the legislator under the law, in contrast to the way Austin asserts that the sovereign does not obey any other person or institution. Legal obligations are also created by drawing from background norms, meaning that force is not always used to create them. 3. Mode of Origin: Customary law Many laws exist because they have lasted the test of time, and may not always express anyone's desires. This timeline is not explained in Austin's theory, which fails to consider that law can come through a non-deliberate process or not have a legislative origin.

Division of labor / role responsibility

1. Division of labor improves productive output, but dissaggerates responsibility for that output, compartmentalizing responsibility to defined roles 2. Individuals are held responsible not for EFax of all but for the fulfillment of the roles terms 3. Sense of personal responsibility largely determined by role requirements whose content individuals have little to no control over 4. Effects (positive or negative) distanced from agents generating effects: not happening now not happening here 5. This rationalization of organization and responsibilities is socially pervasive : law firms, educational institutions, governance organization, etc. 6. Question of responsibility regarding sanctions of Iraq, for instance, largely disaggregated into questions of the legal duties and sovereign right

Veitch point

1. If we accept what he is saying about no one is responsible, we must think that individuals are not agents in the organization but conduints for the generation of the product of the social process 2. Rules and roles are not defined by the individuals but provided to them and that is the extent of their agency 3. Not accountable and consequences are not their responsibility because it is given to them by the organization 4. Happens on social level

Dworkin integrity

1. Integrity in legislation: legislate scheme of morally coherent law 2. Integrity in adjudication: apply law, so far as possible so that the scheme of law is morally coherent 3. Integrity is about achieving equality amidst imperfectly just and fair law 4. Political virtues (fairness, justice and integrity) a. Fairness: equal control over political decisions b. Justice: giving people their due, what they're owed independent of any particular legal system

Legal positivism vs. natural law as Hart understands it

1. Legal Positivism - simple contention that it is no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so 2. Natural Law - human beings possess intrinsic values that govern our reasoning and behavior, maintains that these rules or right and wrong are inherent in people and are not created by society or court judges

Why does Hart reject any stronger necessary connection between law and morality, i.e., a less minimum version of natural law?

1. Legal rules are modestly determinate; for the most part will have clear applications, but might leave room for interpretation. 2. Uncertain guidelines in certain contexts create uncertain borders of the law 3. In order to decide where a law applies, a judge will look at the intent of the law 4. Therefore, the law isn't giving guidance → the judge is using intent as a precedent and making a choice 5. Because officials may be in the position where they need to use expression to make legislative determinations, we can't demand that they adjudicate only according to law 6. There is no moral authorization that gives officials the power to use their expression, therefore no connection between law and morality 7. Legal positivism: we have overestimated the significance of something being "law" 8. Just because something is law, doesn't mean we ought to do it morally

Greene-basic argument of her article?

1. Legal system legitimates and perpetuates racism, despite promising equal rights for all. 2. Looking at post Brown supreme Court decisions, specifically those decided by the 1989 court, she makes the argument that cases involving racial discrimination were being subjected to overly logistical and semantic arguments that weakened the potentially transformative moment.

What are the outcome-related arguments for judicial review, and why does Waldron reject them as settling the case in its favor?

1. Legislature are subject to electoral pressures, but the judiciary is liable to be problematically insulated from the plight of various groups, and the judiciary is also sensitive to public pressure. (EX: Korematsu, Japanese American citizens put in concentration camps and judiciary let it happen, Supreme Court case upholding the exclusion of Japanese Americans from the West Coast Military Area during World War II) 2. Orientation to text of bill of rights? Not clearly an advantage, makes it difficult for courts to confront questions of moral rights directly 3. Oriented around antiquated or arbitrary formulations, becomes about interpretation rather than answering question of rights 4. Courts will seek to maintain precedent 5. Courts : in order to NOT deal with issue and answer question or issue directly they will attach issue to part of text then use legal language to try to give legitimacy to decision and will try to determine text and attach decision to it 6. Waldron is not arguing against the judiciary in general BUT should we want statutory supremacy or judicial supremacy? Should the court decide or legislate? WHO HAS FINAL SAY OF HOW THEY APPROACH QUESTIONS OF RIGHTS? A legislative procedure could more directly engage the relevant issues: so why think courts are more likely to get it right?

What are the two models of precedent discussed by Alexander, and how do they differ? Which does he think is best, and why?

1. Natural model (weak) - gives weight to prior decisions as appropriate to serve values of equality before the law, protecting justified expectations. As precedents do not bind the system but rather serve as considerations for future courts, while this offers a degree of flexibility for the courts, it leaves law too unpredictable. 2. Rule model (strong) - precedent courts promulgate general, binding rules that standardly preempt judicial weighing of merits, meaning that the courts hold more of a legislative quality of power in comparison to mere guidance through precedent. 3. Result model (moderate) - only sets aside prior rulings in cases where there is less reason supporting the holding than in the precedent case. This model of precedent appears to collapse into either of the previous models when the court faces questions about distinguishability between cases. 4. Alexander argues that the rule model is the best, as it allows for predictability based on a strong binding to precedent. The power of legislator is a necessary evil - expand on the reading

Waldron's criticisms

1. No reason to suppose that rights are better protected by this kind of practice than they would be by democratic legislatures 2. Argument for legislative review a. Judicial Review is democratically illegitimate 3. Main concern: protecting individual rights No singular formula to have all individuals agree on rights

Pettit's 3 Freedoms

1. Non-interference: choosing one's preferred option out of a series of possible options. If possible options are removed we are not free to choose our preferred option. It just happens to be our preference. 2. Availability of all options: Freedom is not merely ability to choose your preferred option, but ability to successfully choose between any of the options, whatever your preferences. 3. Non-domination: To avoid subjection to the will of others, you must be capable of successfully selecting among the options independent of others' preferences about your choice.

Iraq Sanctions

1. Officials and states were shielded from responsibility by the legality of the sanctions 2. The great suffering consequent of intentionally imposed economic barriers did not prompt a broad, public demand that officials be held to account 3. Officials were acting within the scope of their legal offices. As long as they did not violate the legal terms of their offices, they occupied a zone of non responsibility 4. Ex : Madeleine Albright " i think it is a very hard choice, but the price, we think the price is worth it". Her sense of personal responsibility is evaded 5. POLITICIANS DID NOT TAKE RESPONSIBILITY AND TOOK LEGALITY OF THEIR DECISION MAKING AS A TYPE OF SHIELD & BLOCKING QUESTION OF THEIR PERSONAL RESPONSIBILITY 6. Veitch would say that the way events are taken up by those who are presented with it (death of millions at Clinton's hands, no memorial dedicated to those lost during sanctions, this is a minor piece of history that we barely know about but clinton's impeachment & affair we know about)

Dworkin Rules and Principles

1. Rules: standards of behavior that always apply 2. Principles: underlying value of the legal system that can lose out to other considerations. 3. If this distinction is correct, then judges do not have Strong discretion. Also Hart's theory doesn't include principles at all. (Example: if the principle "no man may profit from his own wrong" is a part of our legal system, Hart can't account for them)

What distinguishes legal rules from other social rules, the different types of rules (including the different types of secondary rules in a legal system)

1. Social rules need to be morally acceptable in order to be considered rules → but not all societal rules generate social obligations (ex: etiquette, speech) 2. Social rules may conflict with desires, deviance triggers social sanction, which is what makes everyone comply 3. Social rules are what is expected of members of society 4. Legal rules exist because officials recognize the authority of accepted practices 5. Primary rules require or forbid action; Secondary rules recognize/modify primary rules a. Rules of recognition: criteria for which rules count b. Rules of change: indicate method for modifying rules c. Rules of adjudication: indicate who has authority to apply/enforce rules

Evidence: Abortion case

1. The evidence that we care about integrity can be seen in our rejection of checkerboard solutions. The law must "settle on some coherent principle' and never 'affirm for some people a principle it denies to others" 2. Neither fairness nor justice condemn such solutions to political disagreement, which indicates that we care about integrity in politics. It appears important to us that we are governed by a common standard, even if the standard is somewhat unjust or unfair 3. To say women cannot get abortions, except in the case of rape, is different then saying women born in a specific decade can/cannot get abortions, because the former gives a recognized principle for different treatment, (and is therfore not a checkerboard solution) 4. Basic good of integrity in law achieves that can legitimate political power is that we would want a common standard/rule that treats everyone equally even if it's imperfect. 5. Thus, courts ought to administer law that respects equality of principle even when they think the law is wrong and that a different solution should be in place. Shows we care about integrity. What makes the law good is integrity.

Dworkin's definition of naturalism:

1. We can have an unjust law but it's important that it's applied equally as a matter of principle and not as a form of formal equality. 2. What's important to achieve in law is equality of principle. What is going to make a legal proposition true is when it is capable of recognizing equality of treatment within the law. Thus, we may disagree about principles but it's mandatory that we use a single coherent body principle to govern society.

Why does Austin's theory, according to Hart, fail to account for legal obligation?

According to Hart, in considering the position of a legal obligation, the individual facing this decision is different from someone facing a threat, a difference that Austin does not make. In general, Austin's approach cannot capture the way in which law operates as a normative system or the various things it does in a social environment. Moreover, the theory cannot elucidate the ideas of legal rule and legal obligation.

According to Raz, what is the ideal of the rule of law?

According to Raz, the ideal of the rule of law is that it is generally obeyed by officials and subjects and the legal system exists such that people can be guided by law. A legal regime could be bad and have certain class interests can prevail and serve one group over another, but can still be good in one respect if people know what the law is and how it came about. The ideal of the rule of law is that even if laws are bad, it is good for them to have a certain type of form and clarity.

Archaeological case:

Archaeologist scenario: Imagine a group of archaeologists take us to a native american dig site. 2 items from ground found. They ask us "what should we think these two things are? Could be a flint or spear head or a flint and disk. Philosopher: How do you know these aren't chairs or weren't used for shelter? Its not a chair because its function is to not be sat on. Based on prior knowledge and what things are we know it isn't a chair. We can think of purpose: it wouldn't help us avoid the ground, it wouldn't be comfortable. Overall, the idea of the chair doesn't fit well because they would be bad chairs. Not a good function as a chair. However, they could definitely be a good spear and cutting instrument. We assume a purpose for items and we think of what class of items it would be best characterized under.

Why is his theory philosophically attractive?

Austin's view is philosophically attractive because it gives law a more predictable nature and therefore a more stable structure of government, but he fails to distinguish between having an obligation to something and being obliged to do something. Not all laws are obligation, just as not all social rules are rules.

Buck v. Bell

Carrie Buck was a feeble minded white woman who was committed to the State Colony in due form. She was the daughter of a feeble minded mother in the same institution, and the mother of an illegitimate feeble minded child. An Act of Virginia, approved March 20, 1924, stipulated that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard, and that the sterilization may be effected in males by vasectomy and in females by salpingectomy, without serious pain or substantial danger to life. Also, the Act stipulated that the Commonwealth was supporting in various institutions many defective persons who if discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society. In 1924, Bell, the superintendent of the state institution, sought an order for the sterilization by salpingectomy of Buck. After a hearing, the state trial court ordered that Buck be sterilized. The state supreme court affirmed the sterilization order, and Buck sought review, contending that the operation of salpingectomy, as provided for in the Act, was illegal in that it violated her constitutional right of bodily integrity and was therefore repugnant to the due process of law clause of the Fourteenth Amendment. ISSUE: Was the Act of Virginia, which stipulated that sterilization may be effected on mental defectives, violative of the Fourteenth Amendment? ANSWER: No. CONCLUSION: The Court affirmed the state supreme court's judgment. The hearing procedure provided before sterilization of those deemed to be feeble minded satisfied due process under the Fourteenth Amendment, and the fact that the procedure was limited to people housed in state institutions did not deny the inmates equal protection. The Court further held that the state could properly sterilize those determined to be feeble minded to prevent the birth of feeble minded children who might lead lives of crime or indigency. According to the Court, the fact that the sterilization order procedure only applied to inmates in state facilities and not to the general public did not deprive the inmates of equal protection.

Due Process

Buck v. Bell Skinner v. Oklahoma Griswold v. Connecticut Eisenstadt v. Baird Roe v. Wade Planned Parenthood v. Casey Whole Woman's Health v. Hellerstedt Veitch

In what sense is convention the basis of authority and freedom, and under what conditions does convention achieve legitimate authority?

Convention is the basis of authority and freedom in that it is the will of all, where individuals transfer their personal authority to a common authority to secure liberty and personal advantage. Without convention, all individuals remain vulnerable to others' discretion, so to achieve freedom, they must associate on a basis that all can assent to the protection of each individual, advancement of the good of each individual, and leaves each individual free from submission to others will. These are the conditions necessary for convention to achieve legitimate authority.

Dworkin

Dworkin is against legal positivism and does not see how legal positivism can account for any of our laws. He rejects legal obligation and legal right.

Internal point of view (vs. the external)

External - when one looks at a legal order form an external POV one observes how members of a different cohort act with respect to its legal system, the observer is outside the legal system. Internal - applied by one who is a member of a legal system and accepts it as a legitimate legal system, offers one the opportunity to understand why citizens believe they should be obeyed.

Skinner v. Oklahoma

FACTS: Defendant was convicted several times for larceny. Sometime in 1935, a statute known as the Oklahoma Habitual Criminal Sterilization Act was passed. It sentences habitual criminals or those who have been convicted two or more times for crimes "amounting to felonies involving moral turpitude," to sexual sterility. The crime of embezzlement is excluded from its coverage. Proceedings were instituted against the defendant based on the statute. Defendant claimed that the statute violated the Fourteenth Amendment, U.S. Const. amend. XIV. On jury trial, the court instructed the jury that the crimes for which the defendant were felonies involving moral turpitude, which limits the question to whether vasectomy could be performed without detriment to the defendant's general health. The jury found that it could be and judgment was rendered against the defendant. ISSUE: Does the statute violate the equal protection clause? ANSWER: Yes. CONCLUSION: The court held that the act failed to meet the requirements of the equal protection clause of the Fourteenth Amendment. The court found that the defendant was convicted of larceny and that the act treated larceny and embezzlement, intrinsically the same crime and punishable in the same manner, the same except for the sterilization provision. The equal protection clause did not prevent a legislature from recognizing degrees of evil, and the constitution did not require things different in fact or opinion to be treated in law as though they were the same. However, where legislation laid an unequal hand on those who had committed the same quality of offense, the equal protection clause would be a formula of empty words if such conspicuously artificial lines could be drawn. The crimes of larceny and embezzlement rated the same terms of fines and imprisonment, but when it came to sterilization the pains and penalties of the law were different, which made for invidious discrimination against groups of individuals in violation of the constitutional guaranty of just and equal laws.

What are the various options for approaching the problem outlined by Fuller, and which is best, and why?

Fuller -- DO READING

What is at issue in the case for Greene's purposes, and why does she find the result objectionable?

Greene: the rules employed here place an obstacle in achieving actual equality in employment. Difficult evidentiary burden to meet. The technical question of evidentiary burden (the obligation to produce evidence to properly raise an issue at trial) has largely impacted the justiciability of claims of unequal treatment (makes it hard to bring the issue of unequal treatment in trial)

Hart on rules: what are they?

Hart believes that it is necessary to have an ultimate rule that unites the legal system, predicated on the union of primary and secondary rules, as social rules are the foundation of every legal system. Citizens may reasonably expect that the rules of law will not be retroactively applied, a principle of fairness is involved. Citizens should have both the ability and opportunity to obey the law, so the principle of formal justice, a principle of impartiality, and the principle of fairness are all built into the necessary and sufficient conditions Hart has for a sufficient legal system. Legal systems are able to exist because officials recognize the authority of the accepted practices of identifying which rules count and should guide official decisions, along with the rules of change and adjudication also recognized by these practices.

The movement from the pre-legal to the legal world

Hart describes the introduction of secondary rules as a step from the pre-legal to legal world. Hart says that the primary rules of obligation are not in themselves adequate to establish a system of laws that can be formally recognized, changed, or adjudicated. Thus, secondary rules are necessary in order to provide an authoritative statement of all the primary rules; in order to allow legislators to make changes in the primary rules if the primary rules are found to be defective or inadequate; in order to enable courts to resolve disputes over the interpretation and application of the primary rules.

Why does Hart discuss the problem?

Hart discusses this problem to separate law from morals, and that keeping clear of the distinction enables questions about obedience and unlawful conduct to be asked with clarity. Saying a standard is law is one thing, saying that one should obey is another. Specifically regarding the grudge informer, Hart argues that saying that "immoral law is no law at all" is to use morality to separate us from analyzing this case from its purpose.

What principles must be adhered to by an institutional order in order to achieve it?

In order to achieve the ideal of the rule of law, the following principles must be adhered to by an institutional order 1. Legal rules should be prospective, open, clear, fairly stable, and/or should be made in accordance with such rules (guidance rationales) 2. Independent judiciary, proper procedure: the executive and law enforcement should not be able to subvert law (application rationales) 3. Distinguished from other political ideals: a. Blocks arbitrary power in narrow sense b. Enables individual planning, freedom in narrow sense c. Respects human dignity (protects expectations) in narrow sense

What is Freeman's argument for the idea that judicial review can be, in certain conditions, compatible with democracy? Be able to characterize his understanding of democracy.

In response to the idea that judicial review is undemocratic because it is counter-majoritarian: "Constitutional limits upon bare majority rule in the form of a Bill of Rights with judicial review, can be viewed, like an executive veto, as functional equivalents of special majority rules. For a judicial determination of unconstitutionality can be overcome by a constitutional amendment by a special majority" (Freeman 364). "So unless it is just arbitrarily stipulated that democracy always entails the right of a bare majority to rule in all questions, the claim that judicial review is undemocratic because counter-majoritarian simply means it is inconsistent with rule by majorities less than those needed to make constitutional decisions through amendment" (Freeman 364). "[A democratic constitution] is the result of an agreement, whose purpose is to define and set up political institutions to determine laws and institutions that are necessary for the effective exercise of the equal basic rights that secure persons in the free pursuit of their good. The procedures best designed to realize this end meet the democratic requirements of justice. On this conception of democracy, what makes a constitution democratic is not equal consideration in majority procedures, but that it specifies rights and procedures devised to promote the good of each citizen and maintain the equal rights that constitute their democratic sovereignty" (Freeman 350). "[Judicial review] is not a limitation upon equal sovereignty, but upon ordinary legislative power in the interest of protecting the equal rights of democratic sovereignty" (Freeman 353). "[...] judicial review is a kind of rational and shared precommitment among free and equal sovereign citizens at the level of constitutional choice. By the exercise of their rights of equal participation they agree to a safeguard that prevents them, in the future exercise of their equal political rights, from later changing their minds and deviating from their agreement and commitment to a just constitution" (Freeman 353). Freeman: by allowing judicial review, equal sovereign citizens are providing themselves with a means for protecting their sovereignty and independence from the possible unreasonable exercise of their political rights in the legislative process. They are freely limiting the range of legislative options open to themselves when they agree to a democratic constitution. They effectively tie themselves into their unanimous agreement on the equal basic rights that specify their sovereignty; judicial review is then one way to protect their status as equal citizens. "Bare majority decisions are not the best rule for insuring that no one's constitutional rights are violated" (Freeman 354). Since special rules or unanimity rules become increasingly ineffective the larger the majority required and are normally unworkable for legislative purposes: "So to maintain legislation that most effectively promotes each person's good and the public good, while providing that the basic rights of citizens are not violated in the process, free and equal persons could rationally agree to bare majority decisions on condition that they be subject to review by an independent body set up for these purposes" (Freeman 354).

Tyranny of the majority

Just because your view may lose in a democracy does not mean there is necessarily tyranny. It is still legitimate so we ought to accept it as the binding law of the land and can't call it tyranny of the majority because we can't always expect democracy to get it right.

What is law, in Austin's view?

Law, in Austin's view, is fundamentally a system of social control, whose central means of control is coercion. Austin believes that laws are rules, which he defines as a type of command. Laws are general commands issued by a sovereign to members of an independent society, and backed up by credible threats of punishment or other adverse consequences in the event of non-compliance, so it is not smart to disobey.

When, in Pettit's view, is one free from domination?

Pettit argues that one is free from domination when sovereign law is arranged to not affect anyone's particular will and every individual has complete control over their preferences.

Henningsen v. Bloomfield Motors

Product Liability | Warranty Landmark Case in area of "Implied Warranty". Made a Valid Legal Concept The defendants refused to repair the car under warranty since they claimed the express warranty was limited only to repairing the defective parts and that it was not liable for damages caused by defective parts. Court weighed principles of: competent parties to contract, manufacturer under a special obligation in connection with the construction, promotion, and sale of his cars, if consumer and public interests are treated fairly, basic doctrine that the courts will not permit themselves to be used as instruments of inequality and injustice

Roe v. Wade

RULE: A state criminal abortion statute that excepts from criminality only a lifesaving procedure on behalf of the mother, without regard to pregnancy stage and without recognition of the other interests involved, is violative of the U.S. Const. amend. XIV. For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician. For the stage subsequent to approximately the end of the first trimester, the state, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the state in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. FACTS: A pregnant single woman (Roe) brought an action for declaratory judgment challenging the constitutionality of the Texas criminal abortion laws, which prohibit abortions except on medical advice for the purpose of saving the mother's life. Roe alleged that she was unable to receive a legal abortion because her life was not endangered by her pregnancy. The District Court held that the right to choose whether to have children was protected by the Ninth Amendment, through the Fourteenth Amendment and that the Texas criminal abortion statutes were void because they were unconstitutionally vague and overbroad. All parties took protective appeals to the United States Court of Appeals for the Fifth Circuit, which ordered the appeals be held in abeyance pending a decision on the appeal taken by all parties to the United States Supreme Court. ISSUE: Does the 14th amendment protect a woman's right to privacy, such that there is a constitutionally protected right to abortion? ANSWER: Yes. CONCLUSION: The court held that the right to privacy encompasses a woman's decision whether or not to terminate her pregnancy, but a woman's right to terminate her pregnancy is not absolute, and may be limited by the state's legitimate interests in safeguarding the woman's health, in maintaining proper medical standards, and in protecting potential human life. The court set forth the following: prior to the end of the first trimester of pregnancy, the state may not interfere with or regulate an attending physician's decision, reached in consultation with his patient, that the patient's pregnancy should be terminated; from and after the end of the first trimester, and until the point in time when the fetus becomes viable, the state may regulate the abortion procedure only to the extent that such regulation relates to the preservation and protection of maternal health; from and after the point in time when the fetus becomes viable, the state may prohibit abortions altogether, except those necessary to preserve the life or health of the mother, and the state may proscribe the performance of all abortions except those performed by physicians currently licensed by the state.

Eisenstadt v. Baird

RULE: If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. FACTS: Appellant was convicted of, among other things, giving vaginal foam to an unmarried woman at the close of a lecture, a violation of Mass. Gen. Law Ann. ch. 272, § 21. The district court dismissed appellant's petition for habeas corpus relief, but the circuit court vacated the district court's order, and remanded with instructions to grant the writ. Appellee sheriff sought review of an order of the United States Court of Appeals for the First Circuit vacating the district court's order dismissing appellant's petition for a writ of habeas corpus. The Court affirmed the circuit court's order. Appellant had standing to assert the rights of unmarried people to access the contraception because he served as an advocate for this third-party right. In so ruling, the Court emphasized that the reason for giving away the foam was to test the statute. Then, the Court held that the state statute violated the Equal Protection Clause of U.S. Const. amend. XIV. The Court rejected appellee's argument that the distinction was health related, noting that unmarried persons had as great an interest in avoiding the spread of harmful diseases. ISSUE: Did appellee lack standing to assert the rights of unmarried persons denied access to contraceptives because he was neither an authorized distributor under the statute nor a single person unable to obtain contraceptives? ANSWER: No. CONCLUSION: Appellant had standing to assert the rights of unmarried people to access the contraception because he served as an advocate for this third-party right. In so ruling, the Court emphasized that the reason for giving away the foam was to test the statute. Then, the Court held that the state statute violated the Equal Protection Clause of U.S. Const. amend. XIV. There was no rational reason for the different treatment of married and unmarried people. The right of privacy to be free of unwanted intrusions into the fundamental decision of whether to have children was the same for married and unmarried alike. The Court rejected appellee's argument that the distinction was health related, noting that unmarried persons had as great an interest in avoiding the spread of harmful diseases.

Griswold v. Connecticut

RULE: Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one. The Third Amendment in its prohibition against the quartering of soldiers in any house in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. The Fifth Amendment in its self-incrimination clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides that the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. FACTS: A Connecticut statute made the use of contraceptives a criminal offense. The executive and medical directors of the Planned Parenthood League of Connecticut were convicted in the Circuit Court for the Sixth Circuit in New Haven, Connecticut, on a charge of having violated the statute as accessories by giving information, instruction, and advice to married persons as to the means of preventing conception. The Appellate Division of the Circuit Court affirmed and its judgment was affirmed by the Supreme Court of Errors of Connecticut. The case was elevated on appeal to the Supreme Court of the United States. ISSUE: Did the statute violate a couple's right to privacy? ANSWER: Yes. CONCLUSION: The Court held the right of privacy to use birth control measures was found to be a legitimate one. Thus, finding the statute unconstitutional. It held that marriage lies within the zone of privacy created by several fundamental constitutional guarantees, which, in forbidding the use of contraceptives rather than regulating their manufacture or sale, seeks to achieve its goals by means having a maximum destructive impact upon that relationship. Thus, such a law cannot stand in light of the familiar that a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. The very idea of allowing the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives is repulsive to the notions of privacy surrounding the marriage relationship.

Planned Parenthood v. Casey

RULE: The Court reaffirms Roe v. Wade's essential holding, which has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State's interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman's effective right to elect the procedure. Second is a confirmation of the State's power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman's life or health. And third is the principle that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child. These principles do not contradict one another. FACTS: A Pennsylvania abortion statute was amended to provide that (1) a woman seeking an abortion is required to give her informed consent prior to the abortion procedure and to be provided, at least 24 hours before the abortion is performed, with certain information concerning her decision whether to undergo an abortion, (2) a minor seeking an abortion is required to obtain the informed consent of one of her parents or guardians, but has available a judicial bypass option if the minor does not wish to or cannot obtain such consent, (3) unless certain exceptions apply, a married woman seeking an abortion is required to sign a statement indicating that she has notified her husband of her intended abortion, (4) compliance with the foregoing requirements is exempted in the event of a "medical emergency," which term is defined in another statutory provision as a pregnant woman's medical condition that on the basis of a physician's good-faith clinical judgment, necessitates an immediate abortion to avert the woman's death or to avert a serious risk of substantial and irreversible impairment of a major bodily function, and (5) facilities providing abortion services are subject to certain reporting and record-keeping requirements, which do not include the disclosure of the identities of women who have undergone abortions, but which include a requirement of reporting of a married woman's failure to provide notice to her husband of her intended abortion. Before any of these provisions took effect, five abortion clinics and one physician representing himself as well as a class of physicians who provided abortion services brought suit seeking declaratory and relief on the allegation that each provision was unconstitutional on its face. The United States District Court for the Eastern District of Pennsylvania, after entering a preliminary injunction against enforcement of the provisions, held that all the provisions were unconstitutional and entered a permanent injunction against the state's enforcement of the provisions. The court of appeals reversed in part, holding that only the husband notification provision, was unconstitutional. ISSUE: Was the requirement on married women to notify their husbands before undergoing an abortion presents a substantial obstacle on their choice, and therefore invalid? ANSWER: Yes. CONCLUSION: The Court applied the doctrine of stare decisis and reaffirmed the essential holdings in Roe v. Wade because that decision was still workable and its factual underpinnings had not changed. In a joint opinion, three Justices rejected Roe's trimester framework and adopted an undue burden test for determining whether State regulations had the purpose or effect of placing substantial obstacles in the path of a woman seeking an abortion before viability. The Court agreed that the statute imposed a substantial obstacle in a large fraction of cases and was invalid. The Court also affirmed the holding the court of appeals that the medical emergency provision did not impose an undue burden on a woman's abortion right. A plurality of the Court determined that the statute was also invalid because it required a married woman to provide a reason for her failure to provide notice to her husband.

Whole Woman's Health v. Hellerstedt

RULE: There exists an undue burden on a woman's right to decide to have an abortion, and consequently a provision of law is constitutionally invalid, if the purpose or effect of the provision is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right. FACTS: The case involved the constitutionality of Tex. Health Safety Code Ann. § 171.0031(a), particularly its provisions on "admitting-privileges requirement" which requires physicians performing or inducing an abortion to have active admitting privileges at a hospital located not further than 30 miles from the" abortion facility, and the "surgical-center requirement" that requires an "abortion facility" to meet the "minimum standards for ambulatory surgical centers" under Texas law. The statute was once disputed prior to its enforcement through a facial challenge which lost. After the statute took effect, petitioners challenged the statute on the ground that it resulted on a significant drop on facilities providing abortion due to the costs involved in compliance while increasing patient traffic. The district court enjoined enforcement of the statute due to the impermissible obstacle it created to women seeking a pre-viability abortion. The judgment was reversed on appeal on the ground that the suit was barred by res judicata due to the unsuccessful facial challenge, and that the enforcement of the statute is reasonably related to a compelling state interest in protecting women's health. ISSUE: Is the present suit barred by res judicata, and is the statute constitutional? ANSWER: The suit is not barred by res judicata and the disputed provisions of the statute are unconstitutional. CONCLUSION: A pre-enforcement facial challenge did not have res judicata effect as to an as-applied challenge to the requirement under Tex. Health Safety Code Ann. § 171.0031(a) that physicians performing abortions have admitting privileges at a hospital no more than 30 miles away, nor did the prior suit preclude a challenge to Tex. Health Safety Code Ann. § 245.010(a), which required abortion facilities to meet surgical center requirements. Claim preclusion prohibits "successive litigation of the very same claim," but petitioners' as-applied post-enforcement challenge and facial pre-enforcement challenge do not present the same claim. Changed circumstances showing that a constitutional harm is concrete may give rise to a new claim. As for the constitutionality of the provisions of the statute, the admitting privileges requirement violated the Fourteenth Amendment as there was no significant health-related problem that the requirement helped to cure, and the resulting closure of facilities placed an undue burden on abortion access. Likewise, the surgical center requirement was unconstitutional as the record showed that it was unnecessary and would reduce the number of available facilities in the state to seven or eight.

Riggs v. Palmer; Henningsen v. Bloomfield Motors - basic features of these cases, and Dworkin's point in discussing them

Riggs v. Palmer: Guy kills his grandpa, court denies him inheritance on the principle, "no man may profit from his own wrong" even though this principle has no express legal basis

What does he mean when he says that the enforcement of the general will is merely forcing subjects to be free?

Rousseau argues that the enforcement of the general will is forcing subjects to be free in the sense that by transferring their personal authority under these conditions, each individual can be free from the domination of others, particularly through a process wherein decisions are not based upon one individual's preference, but rather through a procedural, inclusive decision-making process. Each individual still retains control over their preferences in the sense that rationally, the only way to escape subjection under the arbitrary will of others is through the enforcement of the general will. Therefore, when sovereign law, embodying the general will, forces obedience on the part of subjects, it is merely forcing them to be free.

What does Rousseau mean when he says: "Man is born free, and everywhere his is in chains"?

Rousseau's meaning behind "man is born free, and everywhere he is in chains" is that despite the lack of a natural authority of one individual over any other, every individual is constantly under the subjection to another's will. While all individuals are morally born free, they are confined by particular interests that are institutionalized by society. Government is also being used to advance class interests as opposed to the interests of all.

Dworkin's critique of Scalia, including distinction between semantic and expectation intentions

Semantic intention : what someone INTENDS to say Expectation intention : the concrete results one expects to follow from what one say Critique of scalia Scalia can only pick one or the other. -"hire the best person for the job" example

Open texture and its significance for official decision-making under law

Some indeterminacy inevitable given the open texture of language: classifying terms normally have uncertain borders; take "vehicle" He seems to be aware that sometimes in any legal system, there may be cases in which existing laws are vague or indeterminate, and hence, those (cases) are not fully covered by any law. He asserts that in such cases judicial discretion may be necessary in order to interpret and spell out existing laws or to look outside the law for standards to guide in supplementing old legal rules or creating new ones according to the community's ideal of morality or justice.

What is Greene, in general, trying to show?

That racial subordination can be upheld and protected by courts by formally neutral legal technicalities.

How will the Jeffersonian differ from the leftist republican in terms of the major dangers to freedom?

The Jeffersonian differs from the left libertarian in that the Jeffersonian republican view of the threat to freedom comes from the government, whereas the left libertarian would argue that the biggest threat comes from the private sphere. The Jeffersonian would argue for the limitation of state power and smaller government, while the left libertarian would be more concerned about concentrated wealth and regulation of the market to check private actors.

How is Wards v. Atonio supposed to illustrate this case?

The decision rendered in Wards V Antonio raised the burden of proof for accusers claiming to be discriminated against from being able to prove an imbalance in hiring to having to show that the plaintiff was denied opportunity based on Race, Religion, Gender or national origin.

What are the institutional mechanisms for securing freedom?

The institutional mechanisms for securing freedom concern freedom from both public and private domination. These include checks and balances as well as the separation of powers to block unilateral decisions in governance, law enforcement to insulate liberties from private domination, and the regulation of private actors to check private domination.

What are the major concepts he employs in his analysis, and how do they relate to each other?

The major concepts employed in his analysis are legal obligation, legal rule, and the relationship between law and morality. Legal obligation is to be "obliged," meaning that it is prudent to obey the standing legal rules, otherwise it is implied that one will face punishment that is severe enough to deter noncompliance. Legal rules are standing, general orders issued by the sovereign or authorized official that are habitually obeyed or obeyed for fear of sanction. Laws do not necessarily relate to morality or have morally laudatory aims, rules, or effects.

What is the problem of the grudge informer?

The problem of the grudge informer is centered around the issue of using the existing law of the regime in order to illegitimately compromise and get rid of that person you do not like for your advantage. This also translates to people who make use of a new regime and political framework to compromise their peers.

Relatedly, argument for the position that there are legal principles. Why is this important? What is the basic argument against legal positivism?

The strict application of rules in an 'all or nothing fashion' are commonly ineffective in deciding some cases. He states that positivism "forces us to miss the important roles of these standards that are not rules," and thus rejects Hart's rule of recognition for the very reason that it fails to incorporate principles.

Law as the union of primary and secondary rules: what does the theory say?, what are the central concepts?, what unites a legal system? What are the necessary and sufficient conditions for a legal system ?

The theory of law as the union of primary and secondary rules asserts that primary rules, which require or forbid actions to generate duties and obligations, are supported by secondary rules that expand primary rules through recognition, modification, and empowerment. The central concepts are that social rules are the foundation of every legal system and that rules have an internal aspect (internal point of view), and compliance is not merely regarded as a matter of prudence by many group members (as in the external point of view).

Why does Scalia reject intentionalism

The thrust of intentionalism is that the original intent of the legislature is the core of the statute's meaning and the key to its application. Intentionalists essentially argue that the legislature, in passing a statute, has a general intent regarding what that statute should mean and what effect it should have, and that such intent cannot be determined by looking solely at the words used in the text of the statute itself.11 They argue that ignoring extrinsic evidence of legislative intent will increase the "likelihood of a court's accepting an interpretation that is absurdly at odds with the intentions of the enacting legislature"12 and therefore circumventing the will of the legislature and undermining "legislative primacy.

What does the widespread disregard of these principles lead to?

The widespread disregard of these principles leads to uncertainty and frustrated expectations for and of the people under the legal system. Even if the laws put in place are bad, the system should be such that in spite of these laws, individuals can make informed decisions about how to organize and live their lives.

Veitch

Views law as a tool and social instrument to bring legal organization and organize responsibility or to address the lack of it -- Veitch argues that law serves to also address irresponsible behavior, enabling the systematic dispersal of responsibility and disavowing the individual's responsibility to mass atrocity. Legitimates suffering

What is his political legitimacy/procedural argument against judicial review?

Waldron's argument against judicial review with regard to political legitimacy and procedure is that legislative review gives each citizen an equal say in selecting legislatures who make decisions by majority rule. Such a rule is neutral between outcomes, and gives maximum weight to each view consistent with equal weight for each, The legislature is better reflective of constituent will, so fairness seems to disfavor the court. There is no rationale for majority- decision since the justices are not representative of anybody. So, process related reasons strongly favor legislatures as a forum for adjudicating rights as a matter of legitimacy.

Republican Conception of Freedom

You are free with respect to a set of options to the extent that: 1. You have the room and resources to enact the option you prefer 2. Whatever your own preference over those options, and 3. Whatever the preference of any other as to how you should choose